made aware of the overcrowding problems at the Island until the facility was fully operational. Once they were aware of the parking problems caused by the overcrowding, plaintiffs claim they exercised diligence and attempted to work with GSI and the Park Service to remedy it. This argument, however, is disingenuous. Plaintiffs' NEPA claim is premised on the defendants' failure to take the requisite "hard look" at the proposed action, see Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Committee, 146 U.S. App. D.C. 33, 449 F.2d 1109 (D.C. Cir. 1971), and to do an adequate Environmental Assessment and, if called for, Environmental Impact Statement. Assuming, arguendo, that defendants adopted a proposal that was not given adequate consideration as required by NEPA, plaintiffs would have had knowledge of this when they knew of the adoption of that particular proposal as opposed to one of those set out in the EA or described in the ROD. A cause of action under NEPA would then have accrued and plaintiff could have brought suit at that time. It was not necessary for plaintiffs to wait to see if a parking problem would eventually develop before bringing suit.
Even if the overcrowding and parking problems resulted from the decision to build an expanded facility, those harms were certainly foreseeable. Plaintiffs could have challenged the decision to build the expanded facility as soon as they were aware of the decision selected. They did not have to wait for the potential harm, if any, to actually occur. Moreover, they do not base their legal claims merely on the lack of adequate parking.
Granting the relief sought by plaintiffs in this case would clearly prejudice defendants. Capital expenditures of almost three million dollars have been made for the Daingerfield Island facility. A number of actions have been taken by defendants which plaintiffs might have been successful at preventing before the fact had plaintiffs brought this suit in a timely manner. While it is recognized that courts do not favor the application of laches in environmental suits, see, e.g., Arlington Coalition of Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir.), cert. denied 409 U.S. 1000, 93 S. Ct. 312, 34 L. Ed. 2d 261 (1973), granting the relief now requested would severely impact upon GSI as well as the Park Service management of Daingerfield Island. Plaintiffs have unreasonably delayed in bring their claims under NEPA and the CPA to the prejudice of the defendants. The Court, therefore, need not reach the merits of those claims.
Plaintiffs contend in Count III of their complaint that GSI and the Park Service violated the CPA by approving fees for marina slip rentals and services that are unreasonable. No authority has been cited by plaintiffs to sustain their position that a private right of action exists under the CPA. Following the Ninth Circuit, this Court declines to recognize a private cause of action under that Act. Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir. 1982) (declining to find private right of action under CPA).
Plaintiffs also assert that they have standing to challenge the marina rates as third party beneficiaries to the contract between GSI and the Park Service based on a breach of contract claim. The language of that contract makes clear that the intended beneficiary is the public at large, not any specific or identifiable segment of the public such as plaintiffs. Plaintiffs may not, therefore, challenge the contract unless a specifically intended third party beneficiary. Berberich v. U.S., 5 Cl. Ct. 652, 655 (1984) aff'd mem., 770 F.2d 179 (Fed. Cir. 1985).
Finally, plaintiffs challenge the electric submetering charges imposed by defendants. That charge has since been reduced from the challenged $ 3.00 rate to $ 1.00; thus, defendants assert that the claim is now moot as it relates to any continuing violation of law. Plaintiffs additionally seek a rebate for the overcharged dollars prior to the reduction to $ 1.00. Review of the plain language of the controlling Virginia statute upon which plaintiffs premise their claim, however, reveals that it does not apply to submetering of electricity at marinas. Accordingly, plaintiffs final claim must fail. An accompanying Order will be issued in accordance with this Opinion.
Upon consideration of the cross-motions for summary judgment, supporting and opposing memoranda, the entire record, and for the reasons stated in the accompanying Memorandum Opinion, it is this 29th day of October, 1987,
ORDERED that the motion of defendants be, and hereby is, granted; it is further
ORDERED that the motion of plaintiffs be, and hereby is, denied; and it is further
ORDERED that the complaint herein be, and hereby is, dismissed.
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